JUDGMENT

Raghubar Dayal, J. - Ral Manmatha Nath Bose and others, defendants 2 to 5, held the enclosure bearing municipal No. D-37/84 situate in Mohalla Baradeo, Banaras, on parjawatdari tenure from Babu Oudh Behari Singh and others. They executed a sale deed of their rights of possession to the parjawat land to Gajadhar Jaipuriya, defendant 1 under a sale deed scribed on 29-3-1941 and registered on 1-4-1941.

2. Oudh Behari Singh instituted the suit against defendants 1 to 6 pre-empting the aforesaid sale alleging that custom of pre-emption prevailed in the entire city of Banaras and that he had the right to pre-empt on account of his owning property adjacent to this enclosure which had been sold.

3. Gajadhar Jaipuriya, the vendee, contested the suit on various grounds, two of which were that the plaintiff had not made the necessary demands required by the Muhammadan Law of Pre-emption and that the plaintiff had no right to take possession by dispossessing the parjawatdar in, possession, on the pretext of enforcing the right of pre-emption, and in breach of the parjawatdari agreement.

The issues framed in the suit did not include a specific issue on the basis of the second contention mentioned above. There was an issue about the plaintiff's making demands according to Muhammadan Law and also about the plaintiff having a right of pre-emption and about the existence of the custom of pre-emption in mohalla Baradeo and in the case of existence of such a custom whether the defendants-respondents of another Province were bound by that custom.

4. The trial Court held that the plaintiff did not make the necessary demands and that there was a custom of pre-emption in mohalla Baradeo in Banaras City and that such custom was, however, not binding on the defendants as they were residents of another Province. It accordingly dismissed the suit. The plaintiff's appeal was dismissed by this Court also. He then appealed to the Privy Council. The appeal was finally heard by the Supreme Court. The Supreme Court reversed the decision of this Court and held that the defendants were bound by the custom of pre-emption, which prevailed in Banaras even though they were residents of another Province.

It accordingly set aside the decree of this Court and remanded the case for consideration of the two questions left undecided, namely, whether the plaintiff had made the demands in due compliance with the forms prescribed by the Muhammadan Law and, secondly, whether the plaintiff being landlord could eject his own tenants in the exercise of the right of pre-emption.

5. On the question about the making of demands according to the requirements of Muhammadan Law of Pre-emption we are of opinion that the evidence on the record is sufficient to establish that the demands were so made. (After discussion of the evidence on this point his Lordship proceeded:)

6. We are therefore of opinion, as mentioned earlier, that the plaintiff's evidence suffices to establish that the plaintiff has made the two demands according to the Muhammadan Law of Pre-emption.

7. The second question already mentioned is with respect to what was pleaded in para. 3 of the written statement of Gajadhar Jaipuriya, defendant 1. It is necessary to reproduce it in order to indicate the true import of the contention for the defendant specially when the point urged before us is not exactly in the form in which the question is framed.

The point urged before us is that the plaintiff who is the landlord of the land sold cannot pre-empt the sale of the lessee rights of the lessees defendants 2 to 5 who hold the land from him on a tenure known as Parjawatdari tenure, The contention is that a pre-emptor can preempt the sale of land or property but not the sale of lessee rights in land or property.

The question as expressed seems to assume that the plaintiff had a right to pre-empt but in the exercise of that right has no right to dispossess his lessee. Paragraph 3 of the written statement of defendant 1 is:

"Assumi